Ex-Marine cleared of most charges in ACAC incident

WEST CHESTER – A former Marine who caused a commotion at a West Goshen fitness club just days after the school shootings in Newton, Conn., has been acquitted in Chester County Common Pleas Court of engaging in threatening behavior.

James Evan Ferry, who in December 2012 entered ACAC Fitness with a handgun strapped to his waist, was found not guilty Wednesday by a jury of six men and six women on charges of terroristic threats, disorderly conduct, possession of an instrument of crime, and wiretap law violations. The jury deliberated about two hours before returning with its verdict in Judge William P. Mahon’s courtroom.

Ferry, 26, of Philadelphia, was however found guilty by the jury on a single count of misdemeanor harassment for which he will be sentenced at a later date. Mahon also found Ferry guilty on a summary charge of harassment.

The case drew attention earlier this year because Mahon found it impossible to pick a jury after a large number of those on the panel at the time said they would feel uncomfortable hearing evidence about a man with brain injuries carrying a gun, even if the defendant was not charged with any weapons offenses, as was Ferry’s case. Ferry, a U.S. Special Forces veteran, suffered a traumatic brain injury while in the service.

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Rather, the instrument of crime Ferry was charged with carrying was the Sony digital audio recorder that authorities contended he used to improperly record his conversations with employees at the health club in West Goshen. He was properly licensed to carry the .45 caliber semi-automatic gun that drew employees’ attention on the day of the incident.

This time, however, jury selection went smoothly, with only four of the panel’s 75 members dismissed for cause on Tuesday.

The most serious charge that Ferry faced was the felony count of interception of wire, electronic or oral communications, stemming from his recording of a conversation with the club manager without her knowledge. The other counts of disorderly conduct, harassment, and terroristic threats and possession of an instrument of crime are all misdemeanors.

His attorney, Joel E. Benecke of West Chester, had argued that Ferry routinely used the recorder to make audio notes for himself because of the short-term memory loss he suffers from because of his head injuries. Ferry testified that he carried the recorder with him fairly regularly, and a co-worker said he frequently saw Ferry using the recorder to remind himself of things.

“We were very pleased with the jury,” Benecke said Thursday. “I think they did a great job of paying attention and seeing the truth of what happened, instead of what was alleged.

“Obviously my client is happy, but he does take seriously the charge for which he was convicted,” Benecke said.

The case against Ferry began when he went to the ACAC Fitness Center on McDermott Drive around 4 p.m. on Dec. 28, 2012.

According to court records, Ferry was upset about his inability to discontinue his contract at the popular club. He had spoken with a manager at the club earlier in the day by telephone, who told him his contract could only be voided if he had proof that he was moving out of the area. He did not.

At a preliminary hearing held in March 2013, witnesses testified how they had watched as Ferry went into the ACAC building carrying a handgun on one hip and two ammunition magazines on the other. One employee, physical therapist Bryan Miller, said Ferry “stared down” at him as he passed, and that he “felt threatened” by his demeanor. He “looked determined to get his point across,” Miller testified, according to records.

Miller’s fears were heightened, he said, because the Sandy Hook Elementary School shooting, in which 26 children and school staff were killed by a lone gunman, had occurred just two weeks prior, on Dec. 14, 2012.

Once inside, Ferry confronted a desk employee, glaring at her harshly and making her uncomfortable. He even cursed at her when she asked him about the weather outside. The woman, Jill Zagora, said she was “pretty scared” by his behavior, and the visible presence of the handgun.

Manager Carie Riley approached him and offered to speak with him in her office. When they went inside, he shut the door behind him. When she told him again that his contract could not be voided, he asked, “What would happen if there was an incident?”

He suggested that he would return to the club repeatedly “to make life uncomfortable to its members, calling them vulgar names and using obscenities. Riley said she felt “cornered and just extremely scared for my safety. I could see how angry he was and I just didn’t know how he would react,” she testified.

Luckily, according to authorities, Zagora had pushed the office panic button and called 911, and Miller had put the club on lock-down status.

When officers Joseph Virgilio and Robert Balchunis of the township police department arrived, they escorted Ferry out of the building and took possession of the handgun for their safety. When patting Ferry down, Balchunis noticed a hard object in one of his pockets that he said felt like a knife. It turned out, however, to be a digital recorder.

Balchunis, who since has taken a position with the Chester County Detectives, asked Ferry whether he had been recording his conversations that day. Ferry said he had and said he did not want the officer to turn off the recorder.

Balchunis was able to determine that the device had recorded the encounter with Riley in the office, without her knowledge – in violation of state law. He was charged later that day.